HAYNES v. THE STATE.

KNOXVILLE, SEPTEMBER, 1844.

Penal
Statute--Construction. The maxim, qui haeret in litera, haeret in
cortice, is as well applicable to penal statutes as to remedial, and
although such statutes are strictly construed in favor of offenders, yet they
are not construed according to the letter, but according to their spirit, for
the purpose of suppressing the evil; and the protection against conviction when
the words of a statute cover the charge, and its true spirit and meaning do not,
rests in the judge and jury who try the case.

Concealed weapons designated and
others resembling them. A statute is sufficient to sustain a conviction
under an indictment in pursuance of its words, which makes it a highly penal
misdemeanor to wear concealed about the person any bowie-knife, Arkansas
tooth-pick, or other knife or weapon in form, shape, or size resembling them.
(See Code, sec. 4746; Aymette v. State, 2
Humph., 154.)

Stephen Haynes was indicted in the circuit court,
held for the county of Knox, at the February term, 1843.

The indictment charged him, 1st, with having worn a bowie-knife
concealed under his clothes; and, 2d, with having worn, concealed under his
clothes, a knife in size resembling a bowie-knife.

He was tried by Judge Cannon and a jury of Knox county, at the June
term, 1844.

It appeared that Haynes was arrested for an affray, and, being
required to give sureties for his appearance at court to answer for the offence,
attempted to make his escape. In the scuffle which ensued the constable took a
knife from Haynes, which was concealed under his clothes.(p.121)

Witness Booth said the knife was from fifteen to eighteen inches in
length.

Jackson said it was a large knife. It was what he called a
bowie-knife. He had seen bowie-knives of different sizes, some larger and some
smaller than the knife which Haynes had.

Bowen saw the knife when it was taken from Haynes. He said he took it
to be a bowie-knife, and was what he had heard called a bowie-knife.

Harris said he was acquainted with bowie-knives; that bowie-knives
were generally larger than the knife which Haynes had. He had seen them of
different shapes and sizes; that they were used for chopping or hacking, though
they might be used for thrusting; that the knife in question was what was called
a Mexican pirate-knife, but that it might be said to resemble a bowie-knife,
because it had a sharp point, a thick back, and a sharp edge.

Bell said he was acquainted with bowie-knives and pirate-knives; that
they differ in size and shape from each other; that the bowie-knife is much the
largest; that bowie-knives are made of different sizes and shapes, but are
broader and heavier than the pirate-knife.

Nelson said that there was no general resemblance between the
bowie-knife and a pirate-knife; that the knife which Haynes had was a
pirate-knife. He never saw a bowie-knife as small as the knife in question. The
pirate-knife was slim and pointed; the bowie-knife broad and heavy.

The jury, under the charge of the circuit judge, which was not set
out in the bill of exceptions, acquitted the defendant on the charge of wearing
a bowie-knife, but found him guilty as charged in the second count--of wearing a
knife in size resembling a bowie-knife.

The defendant moved the court for a new trial, and presented in
support of the motion his own affidavit, and those of others, to show that the
knife in question was a Mexican pirate-knife, etc.

The motion was overruled, and defendant sentenced to imprisonment in
the common jail of Knox county.

From this judgment he appealed.(p.122)

Swan and J. Nelson, for plaintiff in error.

Attorney General, for the State.

Turley, J., delivered the opinion of the court.

This is an indictment against Stephen Haynes, the plaintiff in
error, under the act of 1837-8, ch. 137, passed to prohibit
persons from wearing, under their clothes or concealed about their persons, any
bowie-knife, Arkansas tooth-pick, or other knife or weapon in form, shape, or
size resembling such bowie-knife or Arkansas tooth-pick. The bill of indictment
contains two counts. The second, upon which the conviction took place, charges
"that the defendant, with force and arms, did unlawfully wear a knife, in size
resembling a bowie-knife, concealed under his clothes."

The design of the statute was to prohibit the wearing of
bowie-knives, and others of a similar description, which the experience of the
country had proven to be extremely dangerous and destructive to human life; the
carrying of which by truculent and evil-disposed persons but too often ended in
assassination. To have undertaken a war against the name of the knife, the
legislature were aware would have been useless and unavailing, as it could and
would have been changed for the emergency as often as legislative provisions
might make it necessary; therefore it is the thing that is provided against, not
the name, it being equally dangerous, either as bowie-knife, Arkansas
tooth-pick, Mexican pirate-knife, aut quocunque nomine gaudet. The act,
therefore, wisely provides against bowie-knives, Arkansas tooth-picks, or any
other weapon in form, shape, or size resembling them. But it is argued that this
is too indefinite, and that absurd consequences must follow its enforcement; for
a small pocket-knife, which is innocuous, may be made to resemble in form and
shape a bowie-knife or Arkansas tooth-pick, the carrying of which, under the
words of the statute, would subject the offender to its penalties. To this it is
to be answered that the carrying of such a knife is not within the evil intended
to be remedied by the statute, and that, (p.123)though within the words, it is not within the spirit and
meaning of the law; that statutes of this character, though strictly construed
in favor of offenders as being highly penal, are not construed according to the
letter, but according to their spirit, for the purpose of suppressing the evil,
and are like the statute spoken of by Blackstone in his Commentaries, which
inflicted the punishment of death upon any individual who should draw blood in
the streets, which he holds by a legitimate construction not to apply to the
case of a physician who should open a vein for an invalid in the streets, it not
being within the spirit and meaning of the statute, though within its letter. So
of the statute under consideration. The design, meaning, and intent was to guard
against the destruction of human life by prohibiting the wearing heavy,
dangerous, destructive knives, the only use of which is to kill; and to hold
that it applied to knives used altogether for lawful purposes, and such as
peaceable persons, not given to brawling and stabbing, carry in their pockets,
would be a violation of sense and of every rule of construction as applicable to
statutes of this kind. The maxim, qui haeret in litera, haeret in
cortice, is as well applicable to penal statutes as to remedial.

But, it may be asked, what is to protect against conviction, when
the words of the statute cover the charge, and its true spirit and meaning does
not?

We answer, the judge and jury who try the case. We cannot presume
that the latter would find, or the former permit, a verdict to stand where the
offence charged was not of the character designed to be prohibited by the
statute.

On the trial of the case two knives were produced; one is admitted
to have been a bowie-knife, the other is called by some of the witnesses a
Mexican pirate-knife. They are both shown to be heavy, deadly weapons, as the
name of the latter clearly indicates; there is some difference in the shape, and
the bowie-knife is the largest; the proof shows that bowie-knives are of
different sizes, according to the fancy or strength of the person who may design
to wield them, but all and every one of them calculated to produce death at a
blow; so is the Mexican pirate-knife, which does in size resemble a bowie-knife,
which it may (p.124)do without being actually
as heavy or as large as a bowie-knife. The knife produced on the trial, and
called a Mexican pirate-knife, which is the knife found upon the prisoner, is
shown to have been of a very deadly character; such an one as, by unskilled
individuals, would be called a bowie-knife (as it was by some of the witnesses),
but by connoisseurs a Mexican pirate-knife. The jury, therefore, did not
find the defendant guilty of carrying concealed a bowie-knife, but a knife in
size resembling a bowie-knife, and we think the testimony well warranted the
verdict.

Some affidavits have been introduced on the motion for a new trial,
but they only go to the facts of the name of the knife, viz., Mexican pirate,
and that such was the knife taken from the defendant. These facts, if proven as
stated in the affidavit, would not change the merits of the case, the jury
having found the defendant guilty, not of carrying a bowie-knife, but a knife in
size resembling a bowie-knife, which the pirate-knife does. This testimony,
therefore, could not vary the verdict, as it is found upon the very same facts
disclosed in the affidavit.